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Smith v. Bd. of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 15, 2016
DOCKET NO. A-1171-14T3 (App. Div. Mar. 15, 2016)

Opinion

DOCKET NO. A-1171-14T3

03-15-2016

CONCHITA SMITH, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and U.S. HOUSE OF REPRESENTATIVES, Respondents.

Conchita Smith, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent U.S. House of Representatives has not filed a brief.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Board of Review, Department of Labor and Workforce Development, Docket No. 00008913. Conchita Smith, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent U.S. House of Representatives has not filed a brief. PER CURIAM

Petitioner Conchita Smith appeals a final decision of the Board of Review (Board) of the New Jersey Department of Labor and Workforce Development modifying the decision of the Appeal Tribunal. Although the Board found petitioner eligible for unemployment benefits for a portion of the period as to which the Appeal Tribunal found her unqualified, petitioner contends she was entitled to an even longer period of benefits than determined by the Board. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I

Petitioner's employer, the United States House of Representatives, laid off petitioner on March 15, 2013, but she did not file a claim for unemployment compensation benefits until April 21, 2013. Although familiar with how to file a claim, she initially refrained from doing so until she received written instructions from her employer about how to file a claim. When those instructions were not forthcoming, petitioner filed a claim on April 21, 2013.

After her claim was accepted, the Division of Unemployment and Disability Insurance (Division) forwarded to petitioner a notice advising that in order for benefits to continue, she had to contact the Division's unemployment certification system department (department) every two weeks either by telephone or online. Petitioner successfully reached the department the first time she called, but thereafter encountered numerous problems making contact and was unable to communicate with the department through December 14, 2013. Specifically, she reported that whenever she called, she was placed on hold for an inordinate period of time, only to be disconnected. Attempts to contact the department online were unavailing because the system persistently rejected the Personal Identification Number that had been assigned to her.

In December 2013, petitioner appeared at one of the Division's local offices to address the problem in person. Thereafter her benefits, which had been previously suspended, resumed. However, on January 24, 2014, the Deputy of the Division determined petitioner was not eligible for benefits from May 5, 2013 to December 14, 2013, because she had failed to contact the department every two weeks during this time period.

We surmise benefits were discontinued because of petitioner's failure to contact the department biweekly. --------

In another decision issued on January 24, 2014, the Deputy also rejected petitioner's request that benefits commence on March 17, 2013, the day she was laid off by her employer, rather than on April 21, 2013, the day she first submitted a claim for benefits. The Deputy denied her request because she had failed to report the claim until the latter date, citing N.J.A.C. 12:17-4.2(a).

Petitioner appealed the Deputy's determinations but, following a hearing, the Appeal Tribunal affirmed the Deputy. The Appeal Tribunal's findings with respect to the determination petitioner was ineligible for benefits for the period from May 5, 2013 through December 12, 2014 were as follows:

It was the claimant's responsibility to follow the instructions given to her in order to remain in reporting status and to call, write to the Division or to report to the local office to resolve the matter preventing her from accessing the system.

Her failure to call the Telephone Certification System as required to claim continued benefits for the extensive period from 05/05/13 through 12/14/13 when she encountered a problem with her PIN code is not with good cause. The claimant has not evidenced a substantial or compelling reason for her failure to claim benefits as required by the Division. . . in accordance with N.J.A.C. 12:17-4.3(b).
Petitioner appealed the Appeal Tribunal decision to the Board.

Although she claimed she had been unable to make contact with the Division from May 5, 2013 to December 14, 2013, the Board determined there was evidence petitioner successfully reached the Division by telephone on a sufficient number of occasions from June 18, 2013 to October 12, 2013 to conclude she had substantially complied with the reporting requirements in N.J.A.C. 12:17-4.3(c) during this period. The Board thus modified the Appeal Tribunal's decision and found petitioner eligible for benefits for the weeks ending May 11, 2013 through October 12, 2013. However, because the Board found no evidence petitioner made contact with the Division from October 13, 2013 to December 14, 2013, like the Appeal Tribunal, the Board found petitioner ineligible for benefits during this latter time period. The Board also affirmed the Appeal Tribunal's finding petitioner was ineligible for benefits before she initially filed her claim on April 21, 2013.

On appeal, petitioner contends she was incorrectly deemed ineligible for benefits for the periods from March 17, 2013 to April 20, 2013, May 5, 2013 to May 10, 2013, and October 13, 2013 to December 14, 2013.

II

Our standard of review is limited. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cty. v. Bd. of Review, 197 N.J. 339, 360 (2009).

With the exception of the Board's findings petitioner is ineligible for benefits for the period October 13, 2013 to December 14, 2013, our review of the record compels us to conclude petitioner's arguments are without sufficient merit to warrant discussion in a written opinion, see Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in the Board's decision.

As for petitioner's claim for benefits for the last contested period, from October 13, 2013 to December 14, 2013, it is not disputed the Division instructed petitioner to contact it by telephone or through the Internet every two weeks in order for her to continue receiving benefits. N.J.A.C. 12:17-4.3(h) provides that "a claimant who fails to comply with reporting requirements . . . shall report to the Division to claim benefits." N.J.A.C. 12:17-4.3(h). However, "[u]nless the claimant has 'good cause,' as defined in N.J.A.C. 12:17-4.1, for failing to report timely by the method directed by the Division, the claimant shall be ineligible for benefits for the designated benefit period." N.J.A.C. 12:17-4.3(h) states "'good cause' means any situation which was substantial and prevented the claimant from reporting as required by the Division." N.J.A.C. 12:17-4.1(b).

Here, petitioner was directed to report biweekly either by telephone or online. She testified she endeavored to do so but was persistently thwarted from contacting the Division by these methods for reasons caused by the Division. Her testimony was uncontroverted and her credibility was not challenged. Although the Board found there was no corroborative evidence petitioner made contact with the Division from October 13, 2013 to December 14, 2013, there would not have been any evidence because, as she testified, petitioner was unable to make contact with the Division by these two methods.

While petitioner delayed going to the Division office in person to address the problem of gaining access to the Division, she risked her entitlement to benefits only if there was a failure to "timely report by the method directed by the Division." N.J.A.C. 12:17-4.3(h). That did not happen here. Petitioner's unrebutted sworn account was that she attempted to contact the Division by telephone and online but was hindered from doing so through no fault of her own. Her assertions relating to this time period are consistent with her account accepted as true for the earlier period. In our view, these circumstances constitute good cause to find petitioner was not ineligible to receive benefits during this time period.

Affirmed in part, reversed in part, and remanded for a determination of benefits for the period from October 13, 2013 to December 14, 2013. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Smith v. Bd. of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 15, 2016
DOCKET NO. A-1171-14T3 (App. Div. Mar. 15, 2016)
Case details for

Smith v. Bd. of Review

Case Details

Full title:CONCHITA SMITH, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 15, 2016

Citations

DOCKET NO. A-1171-14T3 (App. Div. Mar. 15, 2016)